Quick question on the VWP and warnings

[8bit_Theatre 64]

Its been awhile and for the life of me I can't remember the answer.

 

My inlaws arrived from the UK and they ran in to a very grumpy entry officer. She made the comment that they are coming to the US too often and "they should spend more time in their own country". My father in law explained that they had visited more this year because of the new grandchild etc. Anyway she let them in but with a "warning". They mentioned that they were coming back at Christmas and if that would be okay but she refused to answer, just repeated that they had been warned.

 

So...I forget, when they mention a warning, is that completely verbal or do they put a flag on their info for future officer's to see.

 

Personally, I don't think they have really pushed the boundary on time here. In Dec/January they were here for about 50 days, then in mid March came back for another 40 days and then in late June were here for 21 days. They are here for another 45 days and then won't be back until mid December. IE they have never used the full 90 days and always had about 45-60 days between visits.

 

 

 

[Unlockable 7,306]

22 minutes ago, 8bit_Theatre said:

 

Personally, I don't think they have really pushed the boundary on time here. In Dec/January they were here for about 50 days, then in mid March came back for another 40 days and then in late June were here for 21 days. They are here for another 45 days and then won't be back until mid December. IE they have never used the full 90 days and always had about 45-60 days between visits.

 

 

 

You don't think they were "pushing the boundaries" because you are looking at it from a biased point of view because they are family.

 

Let's do some math...

50+40+21+45 = 156 days

There have been 260 days so far since December 1st, 2016.

 

Your in-laws ARE spending more time in the US than at home. Would advise to heed the warning of the officer. And yes they do make notes (or "flags" as you say) in the visitor's profile

[KULtoATL 1,551]

Adding up the number of days, including this new trip, it would be a total of 5 months already. That is a lot of time for a tourist to be spending in the US within a calendar year. If they come back for another trip during Christmas, they will probably hit the 6 months mark. They never overstayed but it kinda seem as though they are living part time in the US. You guys might need to visit them instead in order to celebrate the holidays together. Given how frequent they enter the US, having 45-60 days between visits is just not enough. 

[geowrian 22,335]

I doubt they actually put anything formal in place...just a "friendly" warning. They can flag people, but that's not the vibe I got here from what was explained. Based on the timeline you've presented, I'm not surprised. They've spent about 50 days in the US followed by about the same amount out of it, followed by 40 days in it, followed by ~2 months out, followed by 21 days in, followed by about a month out, and are now here for ~45 days. They will have close to 160 days in the US within the past 12 months at the time they try to re-enter. That's quite a bit honestly (almost enough to require taxes to be filed under the substantial presence requirement). To CBP, it's starting to look like they are living in the US using the VWP...not visiting.

 

I think it would be quite risky to try to visit again in Dec. If denied, they will lose VWP privileges and need to get a visa. The rule of thumb is to spend more time out of the US than out of it...I personally prefer to see twice as much outside of it than inside of it to be safe. VWP is an amazing privilege that so many people wish the could use even once.

Edited August 18, 2017 by geowrian

[Suss&Camm 2,213]

3 minutes ago, NuestraUnion said:

You don't think they were "pushing the boundaries" because you are looking at it from a biased point of view because they are family.

 

Let's do some math...

50+40+21+45 = 156 days

There have been 260 days so far since December 1st, 2016.

 

Your in-laws ARE spending more time in the US than at home. Would advise to heed the warning of the officer. And yes they do make notes (or "flags" as you say) in the visitor's profile

lol I was just adding up the days myself... it's about 60% of the time since Dec of last year they have spent inside the US..

 

OP - the rule of thumb is to stay in their home country for at least twice as much as in the US. To actually spend MORE time inside the country will definitely appear as if they are living in the US and not their home country. They are definitely pushing it! 

[8bit_Theatre 64]

6 minutes ago, NuestraUnion said:

You don't think they were "pushing the boundaries" because you are looking at it from a biased point of view because they are family.

 

Let's do some math...

50+40+21+45 = 156 days

There have been 260 days so far since December 1st, 2016.

 

Your in-laws ARE spending more time in the US than at home. Would advise to heed the warning of the officer. And yes they do make notes (or "flags" as you say) in the visitor's profile

If you add up the days from the point that they leave this trip its closer to 300 actually but I take your point (otherwise you would say 111 out of 260 or about 42%) . 156 out of about 295 is slightly over 50%. By December that figure will drop to about 42%.

 

 

[8bit_Theatre 64]

19 minutes ago, 8bit_Theatre said:

If you add up the days from the point that they leave this trip its closer to 300 actually but I take your point (otherwise you would say 111 out of 260 or about 42%) . 156 out of about 295 is slightly over 50%. By December that figure will drop to about 42%.

 

 

Also I just counted the days from a calendar and realized I'm off.

 

It was 44 days +33+21+35. Thats 133 out of 265 (56%) if we stop the clock at their departure. By their December visit it would be 133 out of 372 or about 35% which is almost 2:1.

Edited August 18, 2017 by 8bit_Theatre

[8bit_Theatre 64]

Sorry one more question. They are thinking of applying for Global Entry this fall. Will that cause any issues?

[geowrian 22,335]

You're looking too much at the exact number of days/percentage. There is no specific amount of time...the point is that it certainly looks like they are spending too much time in the US to CBP. They would not have issued the (assumingly unofficial) warning otherwise...as grumpy as the officer may have been, that really was quite a friendly gesture to give them a heads up. He's not required to do so. He could have said nothing and just let them tempt fate next time without realizing what it's starting to look like.

 

Having Global Entry will probably make things easier (but is not a guarantee). But as for if they qualify or not, they will make an assessment of their eligibility based on the totality of their circumstances. 214b is still a cause for ineligibility in this case.

[8bit_Theatre 64]

3 minutes ago, geowrian said:

You're looking too much at the exact number of days/percentage. There is no specific amount of time...the point is that it certainly looks like they are spending too much time in the US to CBP. They would not have issued the (assumingly unofficial) warning otherwise...as grumpy as the officer may have been, that really was quite a friendly gesture to give them a heads up. He's not required to do so. He could have said nothing and just let them tempt fate next time without realizing what it's starting to look like.

 

Having Global Entry will probably make things easier (but is not a guarantee). But as for if they qualify or not, they will make an assessment of their eligibility based on the totality of their circumstances. 214b is still a cause for ineligibility in this case.

214b?

[geowrian 22,335]

Just now, 8bit_Theatre said:

214b?

Section 214b of the INA that basically says anybody seeking entry to the US with nonimmigrant status is presumed to have immigrant intent unless it can be shown otherwise.

 

" Every alien 10/ (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) "

[8bit_Theatre 64]

1 minute ago, geowrian said:

Section 214b of the INA that basically says anybody seeking entry to the US with nonimmigrant status is presumed to have immigrant intent unless it can be shown otherwise.

 

" Every alien 10/ (other than a nonimmigrant described in subparagraph (L) or (V) of section 101(a)(15), and other than a nonimmigrant described in any provision of section 101(a)(15)(H)(i) except subclause (b1) of such section) shall be presumed to be an immigrant until he establishes to the satisfaction of the consular officer, at the time of application for a visa, and the immigration officers, at the time of application for admission, that he is entitled to a nonimmigrant status under section 101(a)(15) "

Got it. Thanks for all your helpful info.

 

Hopefully for the Global Entry they will look at their complete history - 20 years of visiting the US averaging 40-60 days a year with zero overstays.

[geowrian 22,335]

Just now, 8bit_Theatre said:

Got it. Thanks for all your helpful info.

 

Hopefully for the Global Entry they will look at their complete history - 20 years of visiting the US averaging 40-60 days a year with zero overstays.

Best wishes! Yes, a long history of not abusing status does help.

[grumpybrit 22]

48 minutes ago, 8bit_Theatre said:

Sorry one more question. They are thinking of applying for Global Entry this fall. Will that cause any issues?

If the officer has already "flagged" them then yes, this could be a problem

[f f 725]

are they helping care for the grand child? watching it when you go out or doing any regular activities with the child?